While that's certainly an original argument, the ACLU hasn't done much to flesh it out. Most of its 31 page brief is devoted to the idea that genes are unpatentable products of nature and a laundry list of heart-wrenching stories from breast cancer patients who've been affected by Myriad's control of two genes associated with their disease.

The free speech part of the argument is summed up as:

All of the challenged claims represent patents on abstract ideas or basic human knowledge and/or thought and as such are unconstitutional under the First and Fourteenth Amendments to the United States Constitution.

The Law360 blog provided some additional detail from last week's hearings. Apparently the ACLU is also challenging other Myriad patents covering a method of testing for gene mutations associated with cancer. That method, the ACLU argues, amounts to a thought process, and giving one party control over a thought violates the first amendment.

Methods and processes can be patented; thoughts cannot. A law professor interviewed by BioWorld Insight said this is the most troubling aspect of the case. If the ACLU can prove that comparing a woman's tissue sample to Myriad's database and determining whether or not she is at risk of cancer is merely a correlation, not a process, then the diagnostics industry is in trouble.

But I'm still not clear on how that ties back to inhibiting the free flow of information. Patents generally encourage information sharing, because they place information into the public domain. Without them, drug companies have no incentive to disclose their scientific advances -- they're better off keeping everything secret.

And ironically, while the drug industry is at the center of the gene patent fight, it is government and academia who actually hold a significant amount of gene patents. The U.S. government holds nearly 400 gene patents, and the University of California holds more than 250. Those researchers don't have the luxury of keeping their gene-related discoveries a secret -- they have to publish their research to advance in their careers. Without patents, companies will be able to take that research and make a buck off of it without paying the academics a dime.

(Thanks to JMP Securities analyst Charles Duncan for walking me through this topic).